Kapur Singh vs The State

Bedi, J.—Kapur Singh was committed to the Court of Session to stand his trial u/s 459, I.P.C., for causing grievous hurt to Gajjan Singh of village Nehianwala, while committing lurking house-trespass on the night between 17th and 18th September, 1961. The trial was held by Shri Sewa Singh, Sessions Judge, Bhatinda, who found the charge proved against the accused and vide his order dated 26th February, 1962, convicted him accordingly and sentenced him to five years'' rigorous imprisonment. The Appellant feels aggrieved and has come up to this Court in appeal.

The story for the prosecution as given by Gajjan Singh P.W.3, briefly stated, is as under. Gajjan Singh on the night between 17th and 18th September, 1961, was sleeping in the courtyard of his house while his wife was sleeping in the verandah and his son Bikkar Singh P.W, on the roof of the house, after having chained the door from inside. At about 2.00 a.m., in the night, Bachan Kaur P. W. awakened her husband Gajjan Singh telling him that there was some noise inside the house. Gajjan Singh got up, opened the door of the room, and with the help of the torchlight, which his wife Bachan Kaur gave to him, saw the Appellant taking out clothes from his box. Gajjan Singh tried to catch hold of the Appellant, but the latter gave a blow with Bhanna P.1 to his adversary which fell on his chest. On receipt of the same, Gajjan Singh fell down. His wife, however, grappled with the Appellant and raised an alarm. Thereupon, Jaswant Singh and Chanan Singh P. Ws. from the neighbourhood and Bikkar Singh P.W., Gajjan Singh''s son arrived on the scene and overpowered the Appellant. In doing so, they caused some injuries to him. Soon after that, Chanan Singh Mazhbi, Jangir Singh, Dalip Singh, Bachan Singh and Bhura Singh also turned up there and the P. Ws. above mentioned narrated the entire occurrence to them. They also saw a big hole in the wall caused by the Appellant in the kotha of Gajjan Singh from which the Appellant had entered. These P. Ws. also saw a number of clothes lying scattered on the floor.

Sarwan Singh S.I. arrived at the scene a little later and recorded the statement P.A of Gajjan Singh and registered the case. After due investigation, the Appellant was sent up for trial which ended in the abovementioned result.

Gajjan Singh was examined on 18th September, 1961 at 7.30 a.m. by Dr. Puri who found the following injuries on his person:

(1) An oblique penetrating wound 1/2" x 1/8" x chest cavity deep on left 4th intercostal space 1/2" above and lateral to left nipple. It ran from lateral to medial and down-wards. The air was gushing out from the wound. There was surgical emphysems on anterior lateral side of chest due to penetrating wound of the lung.

(2) A penetrating wound 1/2" x 1/8" x 1/2" on the left posterior triangle of neck 2" above the clavicle. It ran from below upward and inward. Injury No. 1(sic) was dangerous and injury No. 2 was simple in nature. These were caused by some sharp pointed weapon. The duration of these injuries was within 24 hours.

The Appellant denied the allegations against him and stated, when examined u/s 342 of the Criminal Procedure Code, that he was going from village Siwian to Goniana railway station along the railway line about half-an-hour before sunset. When he reached near the post office, he found Chanan Singh and Bikkar Singh P. Ws. along with another person concealing themselves behind the quarters. Bikkar Singh was armed with a sela and Chanan Singh and the third person with sotis. Bikkar Singh told him that he was still passing by them while he was keeping the wife of Boor Singh carpenter with him. He told them that they could take away that woman from his house whereupon Chanan Singh and his companion caught hold of him by his long hair. Bikkar Singh P. W. gave him a sela blow on his right thigh while Chanan Singh and his companion gave him blows with their sotis. He raised alarm whereupon a number of persons turned up there. He became unconscious thereafter and only regained consciousness on the next day at about 8 00 or 9.00 a.m. when he found himself in the police station. He added that he was falsely involved in this case. He, however, did not lead any evidence to support his plea.

Learned Counsel for the Appellant frankly conceded that there is overwhelming evidence in this case against the Appellant and he could not, therefore, challenge the conviction He, however, maintained that the proper section under which the Appellant should have been charged was Section 457 and not 459, I.P.C. Section 459 reads as under:

Whoever while committing lurking house-trespass or house breaking causes grievous hurt to any person or attempts to cause death or grievous hurt to any person shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

His contention was that the offence of house breaking from the facts given above had already been completed when the entry into the house had been effected and any grievous hurt caused subsequently to Gajjan Singh by the Appellant could not be said to be grievous hurt caused while he was committing the house-breaking. In support of his argument, he cited Emperor v. Said Ahmad ILR (1927) 49 All. 864. This was a judgment given by Mr. Justice Ashworth. In that case the learned Judge dealt with the point now raised before me at considerable length. I agree with the contention of the appellant�s counsel that the appellant had already effected his entry into the house after making a hold through it. The offence of trespass and house-breaking had been completed. The proper section, therefore, under which the appellant should have been convicted was section 457 which runs as under-

Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment etc.

The counsel for the State also had no argument against the contention of the defence counsel.

I, therefore, after the conviction of the appellant from section 459 I.P.C. to section 457 I.P.C. u/s 457 maximum sentence permissible is five years. In my opinion, it is not a case in which the maximum sentence should be awarded. I, therefore, reduce the same by one year, that is to say, the appellant will have to undergo rigorous imprisonment for four years instead of five years. The appeal is accepted only to the above extent.